Public Citizen v. Department of State

• Citation: 276 F.3d 634
• Decision Date: 25 January 2002
• Docket Number: No. 00-5387,00-5387
• Parties: (D.C. Cir. 2002) Public Citizen, Appellant v. Department of State, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 634

276 F.3d 634 (D.C. Cir. 2002)

Public Citizen, Appellant v. Department of State, et al., Appellees

No. 00-5387

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2001

Decided January 25, 2002

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia (No. 98cv01423)

Michael E. Tankersley argued the cause for appellant. With him on the briefs was Alan B. Morrison.

Matthew M. Collette, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Wilma A. Lewis, U.S. Attorney at the time the brief was filed, Leonard Schaitman, Attorney, U.S. Department of Justice, and John Schnitker, Attorney, U.S. Department of State.

Before: Edwards and Tatel, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

When the State Department responds to Freedom of Information Act requests, it generally declines to search for documents produced after the date of the requester's letter. Challenging this "date-of-request cutoff" policy, appellant claims that the Department promulgated it without notice and opportunity to comment as required by the Administrative Procedure Act, and that, in any event, the policy is unreasonable both generally and as applied to appellant's particular request because it forces FOIA requesters to file multiple requests. We reject the former claim because the policy falls within the APA's exemption for "rules of agency organization, procedure or practice." Finding that the State Department has failed to substantiate its claim that an "administrative nightmare" would result were it unable to apply the date-of-request cut-off policy, however, we agree with appellant that the policy is unreasonable both generally and as applied to its FOIA request. Finally, we reject appellant's additional claim that the Department improperly invoked FOIA's national security exemption to withhold some otherwise responsive information.

I.

The State Department processes FOIA requests in four stages. During the first stage, it mails a letter to the requester acknowledging receipt and assigning an identification number. Grafeld Decl. II p 18. This initial letter also informs the requester that the "cut-off date ... is the date of the requester's letter" and that "no documents ... originat[ing] after the date of [the] letter will be retrieved." Sforza Decl. p 6. During the second stage, the Department's Statutory Compliance & Research Division determines "which offices, overseas posts, or other records systems within the Department may reasonably be expected to contain the information requested." Grafeld Decl. II p 23. The Department then "task[s]" these various components to search for responsive documents. Id. p 28. The speed at which the tasked component completes a search depends largely on available personnel, the nature of the request and the number of outstanding requests. "By far" the most frequently tasked component is the Department's Central Foreign Policy File, a centralized automated records system containing the "most comprehensive authoritative compilation of documents," including documents "that establish, discuss or define foreign policy," as well as "official record copies of incoming and outgoing Department communications." Id. p 24. Consequently, the Central File has the "longest queue" of any Department component. Id. p 46. During the third phase of FOIA request processing, the Department reviews the retrieved documents to determine whether it should withhold any, or portions thereof, pursuant to one of FOIA's nine exemptions. During the final phase, the Department copies the documents, redacts classified material and releases them to the requester.

In April 1998, appellant Public Citizen, a non-profit, public interest organization "dedicated to the study and promotion of public health and ... consumer welfare," Appellant's Opening Br. at ii, sent a FOIA request to the Department asking for records describing its "current system for managing word processing files ... and electronic mail messages," as well as "disposition schedule[s] submitted to the National Archives concerning the transfer or disposal" of these materials. Grafeld Decl. I p 4. Three months later, the Department released seven documents in full, as well as an eighth with portions redacted pursuant to FOIA's first exemption, the national security exemption, 5 U.S.C. 552(b)(1). This final document was a thirty-five chapter "records disposition schedule," essentially a document index with each entry containing a brief description of a Department record and designating the record as "permanent" or "temporary." Ronan Decl. p 4. Although the Department initially withheld all 119 entries pertaining to the Bureau of Intelligence and Research, it eventually released all but portions of seventeen entries. According to the Department, the withheld portions describe "sources and methods of intelligence collection [that] would identify substantive areas in which intelligence activities have been carried out or might be undertaken in the future," as well as "identif[y] persons and organizations that ... participate in ... intelligence activities." Grafeld Decl. I p 17. Significantly for this case, the letter accompanying the released documents stated that although the Department typically declines to retrieve documents produced after the date of the FOIA request, the Department had waived this "date-of-request cut-off" policy as a courtesy to Public Citizen. Id. p 9.

Meanwhile, in response to the initial withholding, Public Citizen had filed suit in the United States District Court for the District of Columbia claiming that the Department promulgated the cut-off policy without the notice and comment required by the Administrative Procedure Act, 5 U.S.C. 553(b), and that the cut-off policy was unreasonable both generally and as applied to its request. Public Citizen also claimed that in withholding portions of the seventeen record entries, the Department had improperly invoked FOIA's national security exemption.

Before anything significant occurred in the district court, Public Citizen submitted two additional FOIA requests. The first, made in June, sought documents relating to "international investment issues," including discussions or negotiations of the Multilateral Agreement on Investment. Grafeld Decl. II p 43. The Department acknowledged this request with its standard letter, which included a paragraph informing Public Citizen that it would apply its usual date-of-request cut-off policy. The second request, made in October, sought four specific record disposition schedules and two related "appraisal memoranda" from the National Archives and Records Administration. Appellees' Br. at 13. The Archives released two of these schedules in full but, after consulting with the State Department (the relevant classification authority), invoked FOIA's national security exemption to withhold portions of the remaining documents that essentially duplicated information withheld in response to Public Citizen's April FOIA request. See id. (Archives documents "contained the same information in the Department of State records previously withheld as classified"); Appellant's Opening Br. at 1213 (Archives documents "included the same information in the database entries withheld by the Department"). Amending its complaint in the district court, Public Citizen challenged the application of the cut-off policy to the June request and charged that the Department had improperly classified the Archives material.

In May 2000, the district court dismissed Public Citizen's challenge to the cut-off policy as applied to the April FOIA request because the Department had in fact not applied it. The court dismissed as unripe Public Citizen's challenge to the cut-off policy generally, finding it insufficiently "crystallized," as well as Public Citizen's challenge to the cut-off policy as applied to the June FOIA request, reasoning it was "not possible ... to know" whether the cut-off policy would be applied to that request. Pub. Citizen v. Dep't of State, 100 F. Supp.2d 10, 18 (D.D.C. 2000). Finding the policy a "rule[ ] of agency organization ... or practice" exempt from notice and comment, the district court also granted summary judgment for the Department on Public Citizen's APA claim. Id. at 20-21.

Turning to the Department's invocation of FOIA's national security exemption, the district court, after examining a classified State Department declaration in camera, found that the Department had, for the most part, demonstrated that the withheld material was classifiable. At the same time, however, the court ordered the "disposition dates" on the seventeen record entries released because they were "apparently ... meaningful" to Public Citizen and easily segregable. Id. at 25. Because in responding to Public Citizen's FOIA request, the Department had classified some information the organization sought, the district court held that pursuant to Executive Order 12,958, the Department and Archives had to show that they had not previously released the withheld portions. Id. at 22 (citing Exec. Order No. 12,958 1.8(d) (requiring agencies classifying information in response to a FOIA request to show that they have not previously released the information)). Although the district court found that the two agencies had generally satisfied this burden, it ordered the Department to file a supplemental declaration addressing whether it had ever previously disclosed the information contained in the Archives documents. As part of its ruling on the public disclosure issue, the district court rejected Public Citizen's arguments that the government declarants lacked "personal knowledge" of agency procedure, and thus denied Public Citizen's motion to strike...